Issues in cyberlaw

What online journalists

need to know
 Biggest issues in cyberlaw

• Intellectual property law vs.

the First Amendment: How
do we safeguard citizens’
rights to protect the
“intellectual property” they
create with the First
Amendment’s guarantee of
freedom of speech and
freedom of the press?
 Intellectual prop. vs. 1st Amend.

• Key question for Web

page designers: Can you
legally link to any Web site
you want to?
 Intellectual prop. vs. 1st Amend.

• Key question for Web

page designers: Can you
legally link to any Web site
you want to?
• Courts and case law:
probably not!
 Intellectual property

• What is intellectual
property? Property that
can be protected under
federal copyright,
trademark or patent law or
common law forbidding
unfair competition,
including misappropriation.
 Copyright

• Article I, Section 8 of the U.S. Constitution (ratified

in 1789) gives Congress the power “to promote the
Progress of Science and the useful Arts by securing
for limited Times to Authors and Inventors the
exclusive Right to their respective Writings and
Discoveries.”
• First U.S. copyright law passed: 1790!
• Last major revision: 1976
 Copyright law

• Copyright law protects:

 Literary works, including computer programs and
test questions
 Musical works, both tune and lyrics
 Dramatic words, including soundtracks
 Pantomimes and choreography
 Pictures (photographs, cartoons, paintings,
drawings), graphics and sculptures
 Films and other audiovisual works
 Sound recordings
 Trademark

• Definition: a “word, name, symbol or device” used

by a manufacturer or seller to “identify and
distinguish his or her goods … from those
manufactured or sold by others and to indicate the
source of the goods.”
• Examples:
 The apple on Mac computers
 The curvy shape of a Coke bottle
 The word Oscar as name of the Academy Awards statue
 The Playboy bunny symbol
 Trademark

• Can be registered with the U.S. Patent and

Trademark Office in Washington for 10-year periods
and re-registered as long as the trademark is used.
 Trademark

• The Lanham Act of 1946 protects

trademarks from:
 Infringement: Use of a trademark by someone other than
the trademark holder, which could confuse consumers.
 Dilution: Use of a trademark in an unwholesome or
degrading context
 Misappropriation

• Definition: The unauthorized taking of

someone else’s investment of time, effort
and money. Also called piracy.
• Examples:
 International News Service copying news accounts from
the Associated Press
 Radio stations “ripping and reading” verbatim accounts
from newspapers
 Evolving law of linking

• 5 types of links have caused legal

problems for Web site owners:
 Framing links
 Deep links
 Inline links
 Links to third-party material
 Links to content that infringes copyright
 Framing

• What it is: Technique that lets Web

page designers split Web pages into
multiple regions that can be scrolled
independently
• First became possible in 1996 with
Netscape 2
• Generally innocuous
 Framing

• Has provoked lawsuits when used by

Web page A to link to and display the
content of Web page B inside a frame
or border that makes it look as if A
generated the content that was actually
produced by B.
 Washington Post v. TotalNEWS.com

• Arizona-based Web site, TotalNEWs.com,

was linking to stories on various news sites
and displaying them, with the news
organizations’ logos, inside a Web page
frame that featured the TotalNEWS logo.
• The problem: Some of the news
organizations thought it looked like the stories
weren’t theirs.
 Washington Post v. TotalNEWS.com

• February 1997: The Washington Post,

CNN, Time, Dow Jones, Reuters New
Media and other organizations sue,
charging that TotalNEWS had:
 Misappropriated their content
 Infringed on and diluted their trademarks
 Infringed on their copyright
 Washington Post v. TotalNEWS.com

• Results:
 TotalNEWS.com settled out of court and
agreed to stop framing the news
organizations’ stories
 The organizations dropped the lawsuit
 Most lawyers who advise Web site clients
urge them to avoid using framing links
Washington Post v. TotalNEWS.com

TotalNew
s Web
site
today
 Deep links

• What they are: Linking to a page other

than the home page, in other words to a
page “deep” within the Web site
 Deep links

• Has provoked lawsuits when they

provide a shortcut that allows Web page
users to bypass advertising on the home
page or other early pages in a Web site
 Ticketmaster v. Microsoft

• Microsoft’s www.seattlesidewalk.com, a
guide to the city of Seattle, included deep
links to the page in the Ticketmaster Web
site where surfers could buy tickets to
Seattle concerts.
• These direct links allowed surfers to
bypass the Ticketmaster home page and
other Ticketmaster pages that contained
advertising.
 Ticketmaster v. Microsoft

• The problem: Ticketmaster wasn’t

recording as many page views as it would
have if people directed to the site by
seattlesidewalk.com had started at the
home page.
 Ticketmaster v. Microsoft

• April 1997: Ticketmaster sued, claiming:

 Microsoft had deprived Ticketmaster of the
right to control its trademark
 Microsoft had diluted Ticketmaster’s trademark
 Microsoft had falsely suggested an association
between Microsoft and Ticketmaster
 Ticketmaster v. Microsoft

• Result:
 Parties settled out of court in January 1999
 Microsoft agreed to link only to Ticketmaster’s
home page.
 Some scholars thought deep links could be
seen as violation of the Lanham Act, as part of
federal trademark law that makes it illegal for
businesses to knowingly create confusion over
a trademark
 Deep links

• “A great likelihood of confusion manifested

itself when Microsoft transferred users to the
ticket purchasing page within Ticketmaster’s
Web site because users could reasonably
believe that either the Microsoft and
Ticketmaster sites emanated from the same
source or that Ticketmaster sanctioned or
sponsored Microsoft’s Seattle Sidewalk.com
site.”
— Joseph A. Tontodonato
 Deep links

• Web sites are finding ways to

discourage deep linking through:
 User agreements:
http://www.latimes.com/services/site/lat-terms,0,640523
0.htmlstory
 Hiring vendors to charge Web sites that use deep links
 Inline links

• What they are: Links to image files

• Cause a problem when they are used to
bring into a Web page images that are
copyrighted by some other person or entity
 Kelly v. Arriba Soft Corp.

• Arriba Soft Corp. operates http://www.

arriba.com/, a search engine that used to
show thumbnails of search results.
• California photographer Leslie Kelly
operates a Web site where he sells and
displays his photographs of the American
West.
 Kelly v. Arriba Soft Corp.

• When someone searched for photographer

Leslie Kelly on www.arriba.com, they would
get low-resolution thumbnails of the
photographs on his Web page.
• Double-clicking on those thumbnails would
connect surfers, through an inline link, to
image files on Kelly’s Web page.
• Kelly sued, claiming the inline links violated
his copyright on the images.
 Kelly v. Arriba Soft Corp.

• February 2002: U.S. Court of Appeals for

the Ninth Circuit ruled the thumbnails didn’t
violate Kelly’s copyright, but the inline
links did.
 Third-party links

• What they are: Connections made

between one Web page or trademark and
some online content by someone not
affiliated with the company that owns the
trademark or the online content.
 Third-party links

• Typical case
 Joe, owner of Web site A, builds a home page
and because he’s such a fan of Coca-Cola, he
uses the trademarked Coke can on the page.
That’s risky enough, but he compounds the
problem by providing a link from his home
page to his favorite porn page.
 Coke may sue, charging that Joe has
tarnished the Coke trademark by linking it to
porn.
 Links to illegal content

• What they are: Links to Web sites that

contain content that, typically, infringes on
someone’s copyright.
 Universal v. Reimerdes

• DVDs use technology called the Content

Scramble System to keep people from
illegally copying copyrighted movies.
• In 1998, Congress passed the Digital
Millennium Copyright Act, which made it
illegal to “traffic in” technology that let
people overcome copyright protection
technology.
 Universal v. Reimerdes

• In the late 1990s, Norwegian teenager Jon

Johansen developed De-Content Scramble
System (De-CSS) technology, which
allowed decoding and copying films.
• www.2600.com, the online site of the print
hacker magazine 2600, wrote a story about

De-CSS and linked to a copy of the code.

 Universal v. Reimerdes

• December 1999: Eight movie studios sued

www.2600.com, charging link to De-CSS
violated Digital Millennium Copyright Act
• Court ordered 2600.com to remove the link
to the code.
• 2600.com did but appealed the ruling,
saying linking to illegal content wasn’t the
same as posting illegal content.
 Universal v. Reimerdes

• 2000: U.S. District Court for the Southern

District of New York ruled against
2600.com, saying linking to illegal content
was as bad as posting it
• 2600.com appealed that ruling
• 2001: U.S. Circuit Court of Appeals for the
2nd Circuit ruled against 2600.com, saying
linking to illegal content was as bad as
posting it
 Universal v. Reimerdes

• Questions:
 Is linking to illegal content more like reporting
where something illegal is happening or more
like doing something illegal?
 What are the implications of the ruling for
mainstream journalists?
 Universal v. Reimerdes

• Questions:
 Is linking to illegal content more like reporting
where something illegal is happening or more
like doing something illegal?
 What are the implications of the ruling for
mainstream journalists?
 Bottom line

• Don’t frame someone else’s content in a way

that makes it look like it’s yours.
• Be careful about linking from a commercial Web
site to a point deep inside a commercial Web
site.
• Don’t plant inline links to copyrighted images on
your Web page.
• Don’t tarnish a trademark by indirectly linking it
with distasteful content.
• Don’t link to illegal content.